By Corinne Murdock |

The pro-life group Center for Arizona Policy (CAP) has asked the Arizona Supreme Court to reverse a lower court ruling nullifying the state’s total abortion ban. 

The Arizona Court of Appeals ruled in December that, because the state legislature hadn’t attempted to eliminate elective abortions following and in spite of the Roe v. Wade ruling, the state legislature wouldn’t currently support the long-dormant ban. 

CAP submitted their amicus brief in the case Planned Parenthood Arizona v. Mayes on Monday. In the brief, CAP pointed out that the decades-old injunction preventing the enforcement of the state’s abortion ban was contingent on the authority of Roe as law of the land. CAP also noted that most states with abortion bans following the Roe ruling repealed their bans, yet Arizona didn’t over the last 50 years. 

“Recall that the legislature had two choices under Roe: allow the abortion free-for-all that Roe created or seek to limit abortion,” wrote CAP. “Eliminating elective abortion was not an option; Arizona’s law doing precisely that was already enjoined.”

CAP argued that the legislature had expressed legislative intent to protect unborn children at all stages of gestation on multiple occasions. The organization noted that Arizona had also attempted in 2012, unsuccessfully, to prohibit most abortions after 20 weeks gestation. CAP also noted that the state legislature enacted a statute in 2021 to direct all provisions of Arizona law to “be interpreted to acknowledge the equal rights of the unborn.”

CAP pointed to the language of the bill enacted last year allowing abortions to occur up to 15 weeks’ gestation, SB1164.

“[W]ith the potential overturning of Roe on the horizon, the legislature sought to avoid any doubt that it desired § 13-3603 [the abortion ban] to become fully enforceable again,” stated CAP. “Thus, S.B. 1164 went beyond simply saying that it was not repealing any ‘applicable state law regulating or restricting abortion.’ 2022 Ariz. Sess. Laws ch. 105, § 2 (2d Reg. Sess.). Its statement of non-repeal also referenced one law specifically—§ 13-3603.”

CAP estimated that about 13,000 unborn children were killed through abortion due to the lower court’s ruling, which upheld SB1164.

“Put simply, both the legislature and various abortion supporters believed that if Roe were overturned, § 13-3603 would prohibit physicians from performing elective abortions from conception. If the legislature did not desire that outcome, it would have acted to prevent it,” said CAP. “It did not. To the contrary, the legislature declared its intent to preserve § 13-3603 even after being told that it would prohibit all elective abortions if Roe were overturned. That intent must be given effect.”

In a press release, CAP argued further that the overturning of Roe should’ve restored the state’s dormant abortion ban. CAP said the lower court ruling “wrongly assumed” that post-Roe state lawmakers that passed limitations on abortion in accordance with the Supreme Court (SCOTUS) precedent didn’t intend to protect the pre-Roe ban.

“State lawmakers passed dozens of laws protecting life while Roe forbade them from going further; they kept the pre-Roe law on the books, even as they made other adjustments to the law; they passed a requirement that Arizona laws be interpreted to value all human life, at every stage of development; and they wrote into the latest abortion law a recommitment to protect life by specifically stating that they were not repealing the pre-Roe law by passing a 15-week limitation just months before Roe was overturned,” stated CAP. 

Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.